Hexamer v. Webb

• Decision Date: 09 February 1886
• Citation: 101 N.Y. 377,4 N.E. 755
• Parties: HEXAMER v. WEBB.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 377

4 N.E. 755

HEXAMER

v.WEBB.

Court of Appeals of New York.

Filed February 9, 1886.

I. T. Williams, for appellant.

George S. Hamlin, for respondent.

MILLER, J.

This action was brought by the plaintiff to recover damages alleged to have been sustained by means of the negligence of defendant's agents and servants in making repairs and improvements upon the hotel of the defendant, situated in the city of New York. The alleged negligence consisted in fixing and securing the staging used in performing the work, and the proof showed that the ladder, used as a scaffold, was suspended from the roof, over the eaves of the hotel, and upon it were placed planks which were used as a platform upon which the workmen employed stood to do the work. This scaffold was moved from time to time, around the bay windows from place to place. A heavy wind was blowing, and, while shifting the ladder, a gust came, and the working of the wind and the grating against the cornice and wall cut the rope which held the planks on the ladder, and the wind turned the planks up so that they fell, and one of them, in falling to the sidewalk, bounded, and struck the plaintiff. One Burford, who was engaged in the roofing and cornice business, was employed by the defendant to do the work, which was intended to obviate a difficulty caused by pigeons making their nests under the eaves of the roof of the hotel. At the close of the testimony a motion was made to dismiss the complaint, upon the ground, among others, that if there was proof of negligence it was not the negligence of the defendant, or his agents or servants, but of an independent contractor; and the plaintiff's counsel then asked to go to the jury upon several grounds, which were stated and refused, and the motion to dismiss the complaint was granted, and the defendant's counsel excepted to the decision of the court.

The employment of Burford was of a general character, and the contract between him and the defendant was not restricted as to time or amount, or the specific services which were to be rendered. The accident occurred while Burford and his men were engaged in the performance of this work, and this action was sought to be maintained upon the ground that the workmen employed, including Burford, were the servants of the defendant, and that the defendant, as owner of the real estate, was responsible to third persons for the carelessness, negligence, or want of skill in those who were carrying on or conducting the business; and this, whether the persons employed were working for wages or on contract. We think that the principle laid down has no application to the facts presented in the case at bar. As a general rule, where a person is employed to perform certain kind of work, in the nature of repairs or improvements to a building, by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the execution of which is left entirely to his discretion, with no restriction as to its exercise, and no limitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done, or as to the payment for the services rendered, and the compensation is dependent upon the value thereof, such person does not occupy the relation of a servant under the control of the master, but he is an independent contractor, and the owner is not liable for his acts, or the acts of his workmen who are negligent, and the cause of injury to another. If the owner of a building employs a mechanic to make repairs upon the same, without any specific arrangement as to terms and conditions, such employment is in the nature of an independent contract, which imposes upon the employe the responsibility incurred by acts of negligence caused by himself, or those who are aiding him in the performance of the work. It is absolutely essential, in order to establish a liability against a party for the negligence of others, that the relation of master and servant should exist.

In King v. New Cent. & H. R. R. Co., 66 N. Y. 184, the rule applicable to such a case is laid down by ANDREWS, J., as follows:

‘It is not enough, in order to establish the liability of one person for the negligence of another, to show that the person whose negligence caused the injury was, at the time, acting under an employment by the person who is sought to be charged. It must be shown, in addition, that the employment created the relation of master and servant between them. Unless the relation of master and servant exists, the law will not impute to one person the negligent act of another.’

In the case considered we think that, by the contract between the defendant and Burford, the relation of master and servant was not created. Burford was a mechanic, engaged in a particular kind of business, which qualified him for the performanceof the work which he was employed to do. By the arrangement with the defendant, he was an independent contractor, engaged to perform the work in question. He was employed to accomplish a particular object by obviating the difficulty which he sought to remove. The mode and manner in which it was to be done, and the means to be employed in its accomplishment, were left entirely to his skill and judgment. Everything connected with the work was wholly under his direction and control. No right was reserved to the defendant to interfere...